To what expedient then shall we finally resort for maintaining
in practice the necessary partition of power among
the several departments, as laid down in the constitution?
The only answer that can be given is, that as all these exterior
provisions are found to be inadequate, the defect
must be supplied, by so contriving the interior structure of
the government, as that its several constituent parts may,
by their mutual relations, be the means of keeping each
other in their proper places. Without presuming to under-take
a full developement of this important idea, I will hazard
a few general observations, which may perhaps place
it in a clearer light, and enable us to form a more correct
judgment of the principles and structure of the government
planned by the convention.

In order to lay a due foundation for that separate and
distinct exercise of the different powers of government,
which to a certain extent, is admitted on all hands to be
essential to the preservation of liberty, it is evident that
each department should have a will of its own; and consequently
should be so constituted, that the members of
each should have as little agency as possible in the appointment
of the members of the others. Were this principle
rigorously adhered to, it would require that all the appointments
for the supreme executive, legislative, and judiciary
magistracies, should be drawn from the same fountain
of authority, the people, through channels, having no
communication whatever with one another. Perhaps such
a plan of constructing the several departments would be
less difficult in practice than it may in contemplation appear.
Some difficulties however, and some additional expence,
would attend the execution of it. Some deviations
therefore from the principle must be admitted. In the constitution
of the judiciary department in particular, it might
be inexpedient to insist rigorously on the principle; first,
because peculiar qualifications being essential in the members,
the primary consideration ought to be to select that
mode of choice, which best secures these qualifications;
secondly, because the permanent tenure by which the appointments
are held in that department, must soon destroy
all sense of dependence on the authority conferring
them.

It is equally evident that the members of each department
should be as little dependent as possible on those of
the others, for the emoluments annexed to their offices.
Were the executive magistrate, or the judges, not independent
of the legislature in this particular, their independence
in every other would be merely nominal.

But the great security against a gradual concentration of
the several powers in the same department, consists in giving
to those who administer each department, the necessary
constitutional means, and personal motives, to resist
encroachments of the others. The provision for defence
must in this, as in all other cases, be made commensurate
to the danger of attack. Ambition must be made to counteract
ambition. The interest of the man must be connected
with the constitutional rights of the place. It may
be a reflection on human nature, that such devices should
be necessary to controul the abuses of government. But
what is government itself but the greatest of all reflections
on human nature? If men were angels, no government
would be necessary. If angels were to govern men, neither
external nor internal controuls on government would be
necessary. In framing a government which is to be administered
by men over men, the great difficulty lies in this:
You must first enable the government to controul the governed;
and in the next place, oblige it to controul itself. A
dependence on the people is no doubt the primary controul
on the government; but experience has taught mankind
the necessity of auxiliary precautions.

This policy of supplying by opposite and rival interests,
the defect of better motives, might be traced through the
whole system of human affairs, private as well as public.
We see it particularly displayed in all the subordinate distributions
of power; where the constant aim is to divide
and arrange the several offices in such a manner as that
each may be a check on the other; that the private interest
of every individual, may be a centinel over the public
rights. These inventions of prudence cannot be less requisite
in the distribution of the supreme powers of the
state.

But it is not possible to give to each department an equal
power of self defence. In republican government the legislative
authority, necessarily, predominates. The remedy
for this inconveniency is, to divide the legislature into different
branches; and to render them by different modes
of election, and different principles of action, as little connected
with each other, as the nature of their common
functions, and their common dependence on the society,
will admit. It may even be necessary to guard against dangerous
encroachments by still further precautions. As the
weight of the legislative authority requires that it should
be thus divided, the weakness of the executive may require,
on the other hand, that it should be fortified. An
absolute negative, on the legislature, appears at first view
to be the natural defence with which the executive magistrate
should be armed. But perhaps it would be neither
altogether safe, nor alone sufficient. On ordinary occasions, [Volume 1, Page 331]
it might not be exerted with the requisite firmness;
and on extraordinary occasions, it might be perfidiously
abused. May not this defect of an absolute negative be supplied,
by some qualified connection between this weaker
department, and the weaker branch of the stronger department,
by which the latter may be led to support the
constitutional rights of the former, without being too
much detached from the rights of its own department?

If the principles on which these observations are
founded be just, as I persuade myself they are, and they
be applied as a criterion, to the several state constitutions,
and to the federal constitution, it will be found, that if the
latter does not perfectly correspond with them, the former
are infinitely less able to bear such a test.

There are moreover two considerations particularly applicable
to the federal system of America, which place that
system in a very interesting point of view.

First. In a single republic, all the power surrendered by
the people, is submitted to the administration of a single
government; and usurpations are guarded against by a division
of the government into distinct and separate departments.
In the compound republic of America, the power
surrendered by the people, is first divided between two distinct
governments, and then the portion allotted to each,
subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people.
The different governments will controul each other; at the
same time that each will be controuled by itself.

Second. It is of great importance in a republic, not only
to guard the society against the oppression of its rulers;
but to guard one part of the society against the injustice of
the other part. Different interests necessarily exist in different
classes of citizens. If a majority be united by a common
interest, the rights of the minority will be insecure.
There are but two methods of providing against this evil:
The one by creating a will in the community independent
of the majority, that is, of the society itself; the other by
comprehending in the society so many separate descriptions
of citizens, as will render an unjust combination of a
majority of the whole, very improbable, if not impracticable.
The first method prevails in all governments possessing
an hereditary or self appointed authority. This at best
is but a precarious security; because a power independent
of the society may as well espouse the unjust views of the
major, as the rightful interests, of the minor party, and
may possibly be turned against both parties. The second
method will be exemplified in the federal republic of the
United States. Whilst all authority in it will be derived
from and dependent on the society, the society itself will
be broken into so many parts, interests and classes of citizens,
that the rights of individuals or of the minority, will
be in little danger from interested combinations of the majority.
In a free government, the security for civil rights
must be the same as for religious rights. It consists in the
one case in the multiplicity of interests, and in the other,
in the multiplicity of sects. The degree of security in both
cases will depend on the number of interests and sects;
and this may be presumed to depend on the extent of
country and number of people comprehended under the
same government. This view of the subject must particularly
recommend a proper federal system to all the sincere
and considerate friends of republican government: Since
it shews that in exact proportion as the territory of the
union may be formed into more circumscribed confederacies
or states, oppressive combinations of a majority will
be facilitated, the best security under the republican form,
for the rights of every class of citizens, will be diminished;
and consequently, the stability and independence of some
member of the government, the only other security, must
be proportionally increased. Justice is the end of government.
It is the end of civil society. It ever has been, and
ever will be pursued, until it be obtained, or until liberty
be lost in the pursuit. In a society under the forms of
which the stronger faction can readily unite and oppress
the weaker, anarchy may as truly be said to reign, as in a
state of nature where the weaker individual is not secured
against the violence of the stronger: And as in the latter
state even the stronger individuals are prompted by the
uncertainty of their condition, to submit to a government
which may protect the weak as well as themselves: So in
the former state, will the more powerful factions or parties
be gradually induced by a like motive, to wish for a government
which will protect all parties, the weaker as well
as the more powerful. It can be little doubted, that if the
state of Rhode Island was separated from the confederacy,
and left to itself, the insecurity of rights under the popular
form of government within such narrow limits, would be
displayed by such reiterated oppressions of factious majorities,
that some power altogether independent of the people
would soon be called for by the voice of the very factions
whose misrule had proved the necessity of it. In the
extended republic of the United States, and among the
great variety of interests, parties and sects which it embraces,
a coalition of a majority of the whole society could
seldom take place on any other principles than those of
justice and the general good; and there being thus less
danger to a minor from the will of the major party, there
must be less pretext also, to provide for the security of the
former, by introducing into the government a will not dependent
on the latter; or in other words, a will independent
of the society itself. It is no less certain than it is important,
notwithstanding the contrary opinions which have
been entertained, that the larger the society, provided it
lie within a practicable sphere, the more duly capable it
will be of self government. And happily for the republican
cause, the practicable sphere may be carried to a very
great extent, by a judicious modification and mixture of
the federal principle.